Three Senators Respond to the President's Assertion of an Appointments Clause Prerogative

Marty Lederman

I noted last week that the President has asserted a constitutional authority to ignore (i.e., to misconstrue) a new statute that would require that the appointed administrator of FEMA have a demonstrated ability in and knowledge of emergency management and homeland security and not less than five years of executive leadership and management experience in the public or private sector.

Today, Senators Collins, Landrieu and Lieberman sent this letter to the President to complain about this and other constututional objections in the most recent signing statement.

According to Charlie Savage, the White House response to the Senators is, in effect: "I might pick a nominee who meets your preferred professional qualifications . . . but you can't make me."

Although this is a political and not a legal observation, I cannot help but notice that, when seeking additional authority, this administration routinely invokes the "unitary executive branch" theory. But when the time comes to take responsibility (which means, of course, not merely uttering the words, but accepting real consequences), the "unitary executive branch" theory disappears as quickly and completely as a snowflake on a hot frying pan.

There's a good argument for political estoppel here, and perhaps for legal estoppel as well.

These three senators are known maverick centrists in their respective political parties. All joined together once before last year to assure Senator Frist he could obtain cloture against the Democrats if Justice Alito's nomination was to be filibustered.

Two of these senators voted for the law which ended eight hundred years of habeas tradition in western democracy; Republican Snowe was not voting.

I like the concept of having an animated president, and, in that sense appreciate INSvChadha's fostering of the separateness of the executive from the legislative.

I expect Globe reporter Savage to revisit the signing statements matter as one scholar is reporting that with the president's most recent signing statement he has surpassed the 1,000 total statutes declared invalid by this president. The last time Charlie Savage covered this story I believe the total was less than 800. Another website following the signing statement story is covering a few new related topics, as well, here.